Ramesh Kumar Bhndoola vs New Delhi Municipal Committee
1991 Latest Caselaw 115 Del

JUDGMENT

V.B. Bansal, J.

(1) Holding him guilty under Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), Ramesh Kumar Bhandoola s/o Shri K.L. Bhandoola, was convicted and sentenced to undergo rigorous imprisonment for six months with a fine of Rs. 1000.00 or in default to further undergo rigorous imprisonment for three months by a Metropolitan Magistrate, New Delhi vide judgment/order dated 5th July, 1977. His appeal against conviction and sentence aforesaid was dismissed by an Addl Sessions Judge, New Delhi on 22nd September, 1978.

(2) Still being unsatisfied from the decisions of the two courts holding him guilty, Ramesh Kumar Bhandoola has filed this Revision Petition.

(3) The facts leading to the filing of this revision petition are short and can be described briefly. The petitioner was carrying on business under the name of Soverign Departmental Stores Keventer's .Lane, Sardar Patel, Marg, New Delhi. On 13th August, 1975, Food Inspector S.D. Sharma while accompanied by sample box carrier Jage visited the business premises of the petitioner and after disclosing his identity and expressing his desire to purchase a sample of Cashewnut salted fried in ground-nut oil, purchased 750 gms.of the- Cashewnuts, which were put in three dried and clean bottles in accordance with law. These bottles were fastened and sealed and one bottle was sent to the Public Analyst for getting a report. The petitioner on enquiry had informed the Food Inspector that the Cashewnuts were fried in groundnut oil and were salted. A report dated 23rd August, 1977 was received from the Public Analyst staling therein that the sample was mis-branded as the same had been prepared with Vanaspati but it was declared to be prepared with groundnut oil. It is after getting the said report that a complaint was filed against the petitioner in the court of the Metropolitan Magistrate for trial.

(4) In support of its case the complainant himself appeared as Public Witness 1 and examined three other witnesses. The petitioner was given a chance to explain the incriminating evidence produced against him in the complaint by way of recording his statement under Section 313 of the Code Criminal Code. He has admitted about the taking of sample from him by the Food Inspector on 13th August, 1975. He has, however, claimed that it was only at the instructions of the Food Inspector that he declared the cashewnuts having been fried in ground-nut oil as the Vanaspati was not available in the market in those days. It was further pleaded by him that the article in question was a prepared food and the Food Inspector had purchased cashewnuts in quantity less than that prescribed under the rules and that he had even shown to the Food Inspector the credit memo about having purchased the cashewnuts from Chand Dry Fruit Mart and Jain Dry Fruit Mart. He however did not produce any evidence in his defense.

(5) I have heard Shri D.C. Mathur, learned counsel for the petitioner and Shri B.J. Nayyar, learned counsel for the respondent. I have also carefully gone through the records.

(6) Learned counsel for the petitioner has submitted that the charge framed against the petitioner was vague on account of which the petitioner has been prejudiced in his right of defending himself and on this account alone his conviction and sentence are liable to be set aside. He has also submitted that the charge does not indicate as to how it was a case of "misbranded/ adulterated". A perusal of the judgments of the courts 'below indicate that the petitioner has been held to be guilty on account of the article being misbranded and not adulterated. Even the report Ex. Pg of the Public Analyst has mentioned the article to be only misbranded and not adulterated. There was, thus, no evidence against the petitioner with regard to the article being adulterated and, thus, it cannot be said that the petitioner has been prejudiced in his defense qua the article in question being adulterated. The only question is as to whether the petitioner has been prejudiced in his defense by not mentioning in the charge specific clause applicable to the petitioner in the instant case. Section (ix) defines misbranded and clause (c) provides that an article of food shall be deemed to be misbranded if it is sold by a name which belongs to another article of food. A bare reading of the complaint, the report of the Public Analyst and the other documents relied upon by the complainant clearly indicates that the article was sold by the petitioner as cashewnut fried in groundnut oil which on analysis was found to have been fried in Vanaspati. It is in these circumstances that it was pleaded that the cashewnuts sold by the petitioner were misbranded. Considering all these facts it cannot be said that the charge was vague or that the petitioner, has in any way, been prejudiced in his defense on this account. This argument, therefore, does not carry any weight and, thus, stands rejected.

(7) Learned counsel for the petitioner has submitted that the petitioner had not fried the cashewnuts himself and rather purchased the same from Chand Dry Fruit Mart and Jain Dry Fruit Mart, which fact was even disclosed by the petitioner to the Food Inspector at that the time of his purchasing the sample. He has also submitted that the word fried in groundnut oil were written by the petitioner only at the instance of the Food Inspector and on this account also, it cannot be said that the cashewnuts were sold by the petitioner as fried in groundnut oil. He has also submitted that cashewnuts, even otherwise are not sold with the specification of being fried in Vanaspati or groundnut oil. This argument, however, when considered in the light of the facts available on record has no foundation and, thus. has to be rejected. Both the Food Inspector S.D. Sharma, Public Witness 2 and Jage, Sample Box Carrier Public Witness 4 have made a categorical statement that the petitioner when asked informed them that the cashewnuts were salted and fried in groundnut oil. They have also stated that these were purchased as cashewnuts fried in groundnut oil and it is so stated in the documents prepared by the Food Inspector at the time of making the purchase. Petitioner has even admitted having .made an endorsement in this regard at point .'A to A' on vendor's receipt Ex. PB. The claim of these two witnesses has not been challenged during cross-examination and, thus, their statements remain uncontroverter. It is only at the stage of recording of his statement under Section 313 Cr.P.C. that the petitioner claimed having made such statement at the instance of the Food Inspector. Such a claim in these circumstances, is apparrantely, an after thought and, thus, cannot be acted upon. It is not a question of general practice as to how an article is purchased by different persons. In the instant case it has been proved on record that the petitioner sold the cashewnuts with a claim that they had been fried in groundnut oil and so it is not open to him now to claim or plead that he had not made such a claim at the time of sale.

(8) Learned counsel for the petitioner has submitted that the report of the Public Analyst is vague inasmuch as- it does not indicate as to how the Public Analyst came to the conclusion that the cashewnuts were found to have been fried in Vanaspati and not in groundnut oil. He has, thus, submitted that the report being lacking in the requisite details, no reliance can be placed on it and on this account the petitioner is entitled to be acquitted. Learned counsel for the respondents, on the other hand, has submitted that the Public Analyst has given all the requisite details in his report and if the petitioner was in doubt or wanted any further clarification it was open to him to have prayed for the summoning of the Public Analyst for cross-examination which option, though available, was not utilised by the petitioner and now he cannot be heard to say that the report is, in fact, vague.

(9) I have given my thoughtful consideration to these submissions and am clearly of the view that the petitioner is entitled to get benefit of doubt.

(10) Under Section 13(5) of the Act, the certificate issued by Director, Central Food Laboratory has to be final and conclusive of the facts stated therein. However, no such presumption is attached to the report of the Public Analyst and, thus, the certificate by the Director cannot be ignored. Reference in this regard can be made to the case: Municipal Corporation of Delhi v. Zahiruddin, 1972 Prevention of Food Adulteration Cases 134. The only presumption could be about the correctness of the facts stated in the report but the conclusion has to be arrived at by the court to bold as to whether an article of food analysed by the Public Analyst is adulterated or not since ultimate judge of the question has to be the court. I find support for this from the case : M.C.D. v. Ram Sarup, 1972 Prevention of Food Adulteration Cases 611.

(11) A perusal of the report Ex. Pg shows that the Public Analyst found: "BUTYRO-REFRACTOMETER reading at 40C of the oil extracted from the cashewnut-53.0 Melting point of the extracted oil-32.5 C."

The aforesaid conclusion of the Public Analyst makes it abundantly clear that it was a finding in respect of the oil extracted from the cashewnuts. It is admitted case of the parties that cashewnuts in question were not in original form but had been fried and the cashewnuts have also their own oil. It is, thus, clear that the oil tested by the Public Analyst was neither pure in its own, nor it was the oil of the cashewnuts. The Prevention of Food Addul iteration Rules, 1955 provides the standards of the different articles of food. Rule-A-19 deals with the Vanaspati which means any refund edible vegetable oil or oils, subjected to a process of hydrogenation in any form and it is to be prepared by hydrogenation from groundnut oil, cotton-seed oil and sesame oil or mixtures thereof. It has also been provided that the Butyro-refractometer reading at 40C shall not be less than 48. Coconut Oil as defined in Rule-A-17.01 means the oil expressed from copra obtained from the Kernel of Cocas nucifera nuts. It is to conform to Butyro-refractometer reading at 40C...34.0 to 35.5. Cotton-seed oil as per Rule A-17.02 means oil expressed from clean sound and decorticated cotton seeds (genus Gossypium), refined and dehydrated. It shall be clear, free from rancidity, suspended or other foreign matter. It shall conform to "Butyro- refractometer reading at 40 G-57.9 to 60.2. According to rule 17.03 groundnut oil means the oil expressed from clean and sound groundnuts and Butyro- refractometer reading at 40C has to be between 54.0 to 57.1. According to learned counsel for the petitioner there is no such standard provided in respect of cashewnuts and the rules do not provide as to what should be the Butyro- refractometer reading at 40C in respect of the extracted oil of cashewnuts and another oil. Learned counsel for the respondent has not been able to contradict the submission of the learned counsel for the petitioner that no such standard is prescribed about the aforesaid admixture of the oil with the oil of the cashewauts. In these circumstances the date and readings mentioned by the Public Analyst in his report cannot be considered to be sufficient to hold that the cashewnuts were not fried in ground-nut oil or that these were fried in Vanaspati. As already mentioned Vanaspati includes groundnut oil in hydrogenated form and it is not clear as to what would be the reading of the ad-mixture of groundnut oil with cashewnuts oil. In view of the absence of this material available on record I have no hesitation in coming to the conclusion that the conclusion arrived at by the Public Analyst is without the requisite details and the material given in the report does not support the conclusion of the Public Analyst. On this account the petitioner is, thus entitled to be acquitted.

(12) As a result the Revision Petition is allowed. The judgments of the two courts below are set aside. Giving him the benefit of doubt, the petitioner is acquitted. He is on bail. His bailbonds stand discharged. Fine, if paid, shall be refunded.